CHAIRMAN, MINIMUM WAGES BOARD, PESHAWAR and another vs FAYYAZ

ORDER

MUHAMMAD BASHIR JEHANGIRI, J.---This petition for leave to appeal is from the order of a learned Division Bench of the Peshawar High Court, Peshawar dated 12-6-1997 whereby Writ Petition No,17 of 1995 filed by the respondent/civil servant was accepted and the impugned order of termination from service dated 1-1-1995 was annulled.

2. The facts of the case as they glean from the record are that the respondent who had obtained his degree in M.A. (History) was appointed on ad hoc basis vide order dated 30-8-1987 against a temporary post in- the office of petitioner No,1 . The respondent claimed that his services stood regularized by virtue of the provisions of N.-W.F.P. Civil Servants (Regularization of Services) Act (I of 1988) (hereinafter called as the Act) promulgated on 23-1-1988. the respondent further urged, that one Taj Muhammad had challenged the respondent's appointment (sic) that the respondent's services had been regularized by operation of law and in view thereof the appeal was dismissed on 15-1-1990. It was also maintained that notwithstanding the plea of the petitioners as aforesaid his services were illegally terminated on the ground that he was ad hoc appointee.

3. The learned Judges of the Division Bench who were seized of the matter, found that "the respondents have been taking contradictory pleas at different times before different forums". In support of the a fore noted finding the learned Judges quoted in extensor para. 12 of the written statement filed by the petitioners, wherein rule 13 of the West Pakistan Minimum Wages Rules, 1962 was invoked where under the Government was empowered to appoint Secretary of the Board and such other staff according to the necessity. In view of the a fore noted defense taken up by the petitioners before the Service Tribunal, the appeal filed by Taj Muhammad was dismissed. In this context the relevant observations made by the learned Division Bench are: "Although the respondents herein in unequivocal terms had admitted in their written statement dated 24-9-1988 as quoted above, that the petitioner by virtue of the Act had become permanent member of service, yet respondent No, 1 passed the impugned order on 1-1-1995, after the lapse of more than six years, probably forgetting his earlier stand taken in the earlier litigation, and in order to justify the impugned order the respondents have taken diametrically different plea than the one taken earlier, in the parawise comments furnished in the present writ petition. A party cannot both approbate and reprobate to blow hot and cold to say one thing at one time and turn around at the other to say other thing in the same matter by taking different stances. Once the competent Authority conceded the regularization of service of the petitioner by virtue of the Act, it created valuable rights in favor of the petitioner, which under the rule of locus poenitentiae could not be reversed in the manner adopted in this case."

4. Mr. Talat Qayyum Qureshi, learned Additional Advocate-General N.-W.F.P. in support of the petition contended that the appointment of the respondent having been made at the behest of the Minister by petitioner No, 1 (the Chairman) was violative of rule 13 of the West Pakistan Minimum Wages Rules, 1962 and was thus void ab initio, and therefore, as could be legally terminated. Even this stance of the petitioners is not sustainable in that petitioner No,1 had himself appointed the respondent at what has been termed "at the behest of the Provincial Minster" but he cannot be allowed to turn around to hold it as void ab initio. In Secretary to Government of N.-W.F.P.

Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan (1996 SCM R 413), this Court had deprecated such an attitude of the Government functionary in the following paragraph: "It is disturbing to note that in this case petitioner No,2 had himself been guilty of ~ making= irregular appointment on what has been described 'purely temporary basis'. The petitioners have now turned around and terminated his services due to irregularity and violation of rule 10(2) (ibid).

The premise, to say the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in reinstating the respondent."

5. The learned Judges have also rightly observed that the petitioners could not approbate and reprobate in the same breath about the same matter and that having already and clearly taken up the plea that the respondent's services stood regularized, they could not put forward before the learned Division Bench the plea that he was ad hoc temporary employee whose services could be terminated with a stroke of pen. The same contention has been reiterated before us but we fully agree with the views of the High Court and both the Courts.

6. On the facts of the case, the High Court in exercise of its discretion in their Constitutional jurisdiction could not have granted any relief to the petitioner. The petition is accordingly dismissed.